Morgan v. Foretich, 86-1615.

• Citation: 546 A.2d 407
• Decision Date: 05 August 1988
• Docket Number: No. 87-987.,No. 86-1615.,No. 87-942.,No. 87-936.,No. 87-33.,86-1615.,87-33.,87-936.,87-942.,87-987.
• Parties: Jean Elizabeth MORGAN, Appellant, v. Eric A. FORETICH, Appellee.
• Court: Court of Appeals of Columbia District

546 A.2d 407

Jean Elizabeth MORGAN, Appellant, v. Eric A. FORETICH, Appellee.

No. 86-1615.

No. 87-33.

No. 87-936.

No. 87-942.

No. 87-987.

District of Columbia Court of Appeals.

Argued April 25, 1988.

Decided August 5, 1988.

Stephen Sachs, with whom John Vanderstar and G. Allen Dale, Washington, D.C., were on the brief, for appellant.

Eric A. Foretich, pro se.

Linda P. Holman, Washington, D.C., guardian ad litem.

Before MACK, BELSON and STEADMAN, Associate Judges.

STEADMAN, Associate Judge:

The formal parties to this appeal are the divorced parents of a daughter, H, the ultimate real party in interest. She was born in 1982. On November 8, 1984, appellant Morgan was awarded custody of H and appellee Foretich was given liberal visitation. Almost continuously since that date, the parties have been in litigation on these issues, with numerous appeals to this court and two published opinions. See Morgan v. Foretich, 521 A.2d 248 (D.C. 1987) (Morgan I), and 528 A.2d 425 (D.C. 1987) (Morgan II). Now before us is an appeal from an order of August 19, 1987, granting Foretich a two-week summer visitation with H and a subsequent order of civil contempt and imprisonment of Morgan for refusal to comply with the August 19 order.¹

I.

Some of the background facts, through August of 1986, were recited in our previous opinions. In January 1985, within two months of the custody and visitation order of November 8, 1984, Morgan began to make accusations that Foretich was sexually abusing H during visitation. Motions were filed by both parties relating to changes in custody and visitation and with respect to evaluation of H. These motions were set for hearing before Judge Herbert B. Dixon in November 1985. In his order of December 27, 1985, Judge Dixon denied all these motions with the exception of a minor modification of Foretich's visitation rights.

Matters first came to a head in February 1986, when Morgan refused to allow H to visit Foretich in accordance with the courtordered visitation schedule. Hearings were held in June and July of 1986 on several motions, including Foretich's motions to hold Morgan in contempt and for change of custody and Morgan's motions for temporary suspension of visitation and to compel discovery. On July 17, 1986, Judge Dixon orally announced his finding that Morgan had failed to prove by a preponderance of the evidence that Foretich had abused H, and that Morgan had disobeyed the visitation orders without lawful justification or excuse. A series of further hearings and orders then ensued, resulting in a finding of contempt and order of incarceration in August 1986. We stayed the order pending appeal, with various conditions including the posting of a security approved by the court in the amount of $200,000. On appeal, we upheld the closure of the contempt hearings, Morgan I, supra, and affirmed the judgment of contempt, Morgan II, supra.

Meanwhile, Judge Dixon had ordered that visitation be resumed. When Morgan again failed to comply, Judge Dixon found her in contempt and ordered her incarcerated on February 17, 1987. Morgan was released from jail on February 19, 1987, and on February 24, 1987, visitations resumed for the first time in over a year. From February 24 through April 1, 1987, the visits were supervised and lasted one hour. On April 1, Judge Dixon ordered that the visits be extended to four hours.²

On April 6, 1987, Judge Dixon began a series of hearings on a motion by Foretich for a change of custody and termination of Morgan's parental rights and on Morgan's cross motion to suspend visitation, or, in the alternative, to require supervised visitation. Seventeen days of hearings with numerous witnesses were held over the course of the spring and summer, ending on August 21, 1987.

During the course of the hearings on the motions, Judge Dixon entered several orders continuing to gradually expand the visitation schedule. On April 21, 1987, he ordered the first overnight unsupervised weekend visitations. Pursuant to further orders, H spent nine or ten weekends with Foretich. Several emergency stays of the weekend visitation orders sought by Morgan and H's guardian were denied by this court. H's guardian played some part in most of these weekend visits and submitted reports of her observations to Judge Dixon.

Then on August 19, 1987, with the hearings still not completed,³ Judge Dixon entered an order providing for an extended visitation from August 22 through September 6, 1987. In his six-page order, he noted, inter alia, that since H was scheduled to return to school on September 8, "[w]hatever the court's ultimate ruling may be on the pending motions, to further delay the defendant-father's entitlement to summer visitation with his child until that ultimate ruling results in a denial of said summer visitation by default."⁴

Morgan appealed this visitation order that same day. Her emergency motion for stay pending appeal filed the following day was denied by this court on August 21. Morgan failed to comply with the visitation order. She secreted the child and refused to reveal her whereabouts. (To this day, H remains hidden.) On August 24, Judge Dixon issued an order to show cause why Morgan should not be held in contempt. On the same day, Morgan moved to have Judge Dixon recuse himself on the ground that he had prejudged both her credibility and the evidence on which her defense rested. She also moved to open her contempt hearing to the public, unseal the record and modify a closure order of April 13.⁵

After a hearing held on August 26, Judge Dixon held Morgan in contempt and ordered her incarcerated, effective August 28. He also ordered that the security posted one year earlier pursuant to this court's order be forfeited at the rate of $5,000 per day. On August 27, Morgan appealed the contempt judgment and sought a stay pending appeal. The stay was denied and Morgan was incarcerated on August 28, where she remains.

II.

A principal issue before us is whether the record supports the trial court's action in ordering a two-week summer visitation. Our standard of review is well-established. Trial court decisions as to visitation rights are reversible only for clear abuse of discretion. Hamel v. Hamel, 489 A.2d 471, 475 (D.C. 1985); Jackson v. Jackson, 461 A.2d 459, 460 (D.C. 1983). By statutory command, a trial court judgment may not be set aside except for errors of law, unless it appears the judgment is "plainly wrong or without evidence to support it." D.C. Code § 17-305(a) (1981). Thus, to the extent that such decisions rest on factual foundations, such findings are binding unless clearly erroneous. Morgan II, supra, 528 A.2d at 429; District-Realty Title Insurance Corp. v. Forman, 518 A.2d 1004, 1007 (D.C. 1986). Such is particularly the case where, as here, the findings rest in significant part on considerations of credibility. See, e.g., Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985); Edmund J. Flynn Co. v. LaVay, 431 A.2d 543, 546-47 (D.C. 1981). "If the [trial court's] account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson, supra, 470 U.S. at 573-74, 105 S.Ct. at 1511.

The critical factual determination challenged by Morgan was that sexual abuse of H by her father had not been proven, or, as the court put it, the evidence was "in equipoise." That finding, asserts Morgan, was "plainly wrong."

As indicated in the facts recited above, this issue has been in dispute between the parties since January of 1985. As a result, a trial court file has developed in this case of a size apparently unequaled in a District of Columbia domestic relations proceeding.⁶ Morgan asks that the entire record be taken into account, but in particular focuses upon the evidence presented in the 17 days of hearings between April and August of 1987. She notes, of course correctly, that our prior opinion affirming the trial court did not extend to developments subsequent to August 1986.

A review of the record shows that there was probative evidence on both sides of the issue of abuse. The ultimate question, however, is not how we weigh the evidence but rather whether a finder of fact, fully and personally knowledgeable of not only the evidence presented in the April to August hearings but also the entire history of these proceedings from November 1985 forward,⁷ would be clearly erroneous in concluding that the alleged sexual abuse had not been proven and would commit a clear abuse of discretion in allowing a twoweek visitation. We cannot so conclude.

It is important to keep in mind the posture of the case at the time of the challenged order. The underlying matters before the court were Foretich's motion for change of custody and Morgan's cross-motion to suspend visitation. Evidentiary hearings on those motions were coming to a close. So was the summer, with H scheduled to return to school in early September, H's relationship with her father, interrupted for over a year by Morgan on grounds found baseless at the time, had been resuming on a gradual basis, The court was satisfied that any prospect of physical or emotional harm beyond that already caused by the litigation was effectively neutralized.⁸ With the ultimate issue still open, the court was dealing with the reality that a child's life was moving on.⁹

In this litigation, neither party can conclusively speak for H. She has her own champion, a court-appointed guardian. Although the guardian states that she is in clear disagreement with the trial court's order for the extended summer visitation, we think correct her assessment that she "cannot argue that the order was without evidence to support it or an abuse of Judge Dixon's discretion."

III.

Morgan raises four other issues in this appeal. Only one,...